Labor and Employment Law Sexual Harassment

Sexual Harassment

What is sexual harassment?
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:

The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a co-worker, or a non-employee.
The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
The harasser's conduct must be unwelcome.

It is helpful for the victim to directly inform the harasser that the conduct is unwelcome and must stop. The victim should use any employer complaint mechanism or grievance system available.

When investigating allegations of sexual harassment, EEOC looks at the whole record: the circumstances, such as the nature of the sexual advances, and the context in which the alleged incidents occurred. A determination on the allegations is made from the facts on a case-by-case basis.

Prevention is the best tool to eliminate sexual harassment in the workplace. Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.

What is a Hostile Work environment and Sexual Harassment?
A hostile work environment and sexual harassment occurs when there is conduct that creates an offensive or hostile working environment. Such conduct includes unwelcome sexual advances, request for sexual favors and other verbal or physical conduct of a sexual nature that has the purpose or effect of interfering with an employee`s work performance or creating an intimidating, offensive or hostile work environment. In order to determine if a work environment is hostile to support a claim of sexual harassment, the courts have developed the use a reasonable person standard. The Ninth Circuit has interpreted this to be the perspective of a reasonable woman.

Is there a lot of Sexual Harassment?
Like rape, most sexual harassment goes unreported because the victims are somehow made to feel ashamed of what has happened to them. They are afraid that other people will say "they asked for it" or that no one will believe them or they wont be able to prove it and will be branded as "trouble-makers". Rather than face embarrassment and retaliation, many victims who are lucky enough to transfer or get a new job elsewhere, quietly leave without saying anything. This leaves the harasser free to victimize others.

My boss keeps making sexual comments to me that I find offensive? Do I have any legal rights?
There are various steps one can take to end sexual harassment using the legal system. However, these are generally considered only as a last resort. The first step is for the aggrieved party to talk to the person involved and tell them directly how the behavior is affecting them. It is also good practice to report the unreasonable behavior to others. Some organizations have created their own policy and procedure to prevent incidents of sexual harassment from escalating. Complaints can be filed with the EEOC or under state law with the Fair Employment Practices Agency (FEP). A private law suit or tort lawsuit can also be filed.

Liability to Employers for Sexual Harassment
The employer is not always strictly liable for sexual harassment by its supervisors and employees. Nevertheless, under the quid pro quo theory, an employer is strictly liable for conduct of its supervisors who have authority over hiring, advancement, dismissal, and discipline. Under the hostile work environment theory, an employer is only liable for conduct of its supervisors if the act took place in the scope of the supervisor’s employment. This requires an examination of factors such as when and where the act took place, and whether it was foreseeable. Under either theory, an employer can be held liable for non-supervisory employees if the employer knew or should have known of the conduct and failed to take corrective action within a reasonable time period. An employer will be held liable for retaliatory action against an employee if it takes such action because of a complaint of sexual harassment.

What are defenses for Sexual Harassment?
Conduct only constitutes unlawful sexual harassment if it is unwelcome. If the employer can prove that the conduct was indeed welcome, the employer can absolve itself from liability. The courts will look at the totality of the circumstances, including provocative speech, dress or actions that might have encouraged advances. One must distinguish between unwelcome and voluntary. If an employee engages in a voluntary act that is unwelcome, the employer may still be liable. Voluntary behavior is not in itself a defense to a sexual harassment claim. The employer must prove that it was welcome. Also, under certain circumstances, the employer can avoid respondeat superior liability for a hostile work environment by its supervisors if it has a grievance procedure and policy against discrimination in the work place.